Fuselier v. International Maintenance Corp.

649 So. 2d 1197, 94 La.App. 3 Cir. 792, 1995 La. App. LEXIS 142, 1995 WL 36276
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1995
Docket94-792
StatusPublished
Cited by9 cases

This text of 649 So. 2d 1197 (Fuselier v. International Maintenance Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuselier v. International Maintenance Corp., 649 So. 2d 1197, 94 La.App. 3 Cir. 792, 1995 La. App. LEXIS 142, 1995 WL 36276 (La. Ct. App. 1995).

Opinion

649 So.2d 1197 (1995)

John R. FUSELIER, Plaintiff-Appellant,
v.
INTERNATIONAL MAINTENANCE CORP., Defendant-Appellee.

No. 94-792.

Court of Appeal of Louisiana, Third Circuit.

February 1, 1995.

*1198 Randall Scott Iles, De Ridder, for John R. Fuselier.

James Ray Morris, Lake Charles, for Intern. Maintenance Corp.

Before WOODARD, DECUIR and PETERS, JJ.

PETERS, Judge.

This is a workers' compensation action in which the plaintiff, John Fuselier, seeks to recover benefits from his former employer, International Maintenance Corporation, as a result of a work-related accident which occurred on March 20, 1992. Fuselier claims to be temporarily and totally disabled as a result of his physical and mental injuries sustained in the accident. After trial the hearing officer rendered judgment in favor of the employer denying benefits, and the employee has appealed that judgment.

DISCUSSION OF RECORD

On March 20, 1992, John Fuselier was employed by International Maintenance Corporation as a general laborer on the clean-up crew and was working on one of his employer's construction sites. As a part of his duties he was required to clean up trash and sweep the construction site regularly. On the day of the accident, while sweeping the boiler room floor, he observed a two foot by two foot cement door and a steel cable lying on the floor. The concrete door was apparently leaning against something, and Fuselier noticed there was trash behind the door and under the cable. When he lifted the cable to sweep, the door began to fall toward him. He described what happened next as follows:

*1199 I tried to stand up to get out of the way of it, but by that time it had caught me. So I tried to catch something to help hold me up so where somebody could just lay it back where it was, or whatever, and then—but before I could do that it had caught above my knees and it threw me in a sitting position with the door on top of my legs. And when I fell, my head just about come (sic) between by legs and jarred back up.

The facts are in dispute as to the weight of the door. Patrick Hebert, the safety supervisor at the construction site, estimated the door's weight to be approximately eighty pounds while Fuselier suggested it weighed three to four times that much. Regardless of its weight, the only visible manifestation of any injury to Fuselier was a slight bruise on his lower leg.

The accident occurred on a Thursday morning, and Fuselier was not scheduled to work again until the following Monday. According to his testimony he began experiencing pain in his lower back when he awoke Saturday morning after the accident. He testified his initial pain was so severe he was forced to walk with his torso completely bent at the waist. Shortly thereafter, he began to have a "tingling feeling" in his legs. Fuselier did return to work on Monday but remained in the first aid shack the entire day.

Dr. R.L. Sasser, a general practitioner employed by International Maintenance Corporation, examined the plaintiff for his complaints on March 30, 1992, and according to the medical records in evidence, diagnosed the injury as a cervical and lumbar sprain. He gave Fuselier an anti-inflammatory injection and prescribed medication. Dr. Sasser examined the plaintiff twice more, on April 2 and April 6, 1992. The doctor released Fuselier to return to work with restrictions, but because of continued complaints, referred him for further evaluation to Dr. James Perry, an orthopedic surgeon. According to the trial exhibits, Dr. Perry examined Fuselier on April 13, 1992, and also diagnosed a cervical and lumbar sprain. Dr. Perry recommended physical therapy, modalities, exercises, light duty, and medical follow-up.

Based on the conclusion of both physicians that he could perform light duty, Fuselier reported to the construction site daily. However, he performed no work and simply remained in the safety shack. In fact, he was not even required to walk the two hundred fifty yards from the construction site entrance to the safety shack each morning. Rather, Fuselier would report to the guard shack at the entrance, and someone on the construction site would drive to the guard shack, pick him up, and deliver him to the safety shack. This procedure was sanctioned by the work supervisors, and Fuselier was paid full wages for the time spent on the job location.

At trial Fuselier complained of having to wait on occasion at the guard shack all day for someone to pick him up. According to Fuselier, this prevented him from drawing a full paycheck each week. This assertion was contradicted by his supervisor, Warren Chapman, who testified that the longest Fuselier ever had to wait was forty-five minutes. Even then, according to Chapman, Fuselier was clocked in for pay purposes as if he had begun the shift on time. The only time Fuselier did not receive credit for a full day's work, according to Chapman, was when he left the job site early.

Fuselier testified that not only was he in pain while sitting in the safety shack, but his co-workers constantly ridiculed him. This activity on the part of the co-workers was specifically denied by the supervisors. In any event, in June of 1992, or less than three months after the accident, Fuselier concluded it was no longer beneficial for him to continue to show up for work. Therefore, he quit.

During the time he was reporting for light duty work, Fuselier continued to see Dr. Perry. The doctor had initially prescribed physical therapy, and after one week of sessions, Dr. Perry observed no objective clinical findings to justify Fuselier's complaints. The results of a cervical and lumbar MRI ordered by Dr. Perry and performed on April 22, 1992, were negative as to the cervical area. However, the test did reveal a "[b]ulging of the annulus at the L5-S1 level and to a lesser extent at the L4-L5 level without demonstration of disc herniation."

*1200 Dr. Perry's examination of May 5, 1992, was essentially normal although Fuselier complained that the physical therapy "hurts more than it helps." After his examination of Fuselier on May 12, 1992, Dr. Perry concluded that his patient "seems to be over-exaggerating his symptoms." Because of his lack of findings despite continued complaints, Dr. Perry sought a second opinion by referring Fuselier to Dr. Thomas R. Butaud, an Opelousas, Louisiana, orthopedic surgeon.

Dr. Butaud examined the plaintiff on June 2, 1992, and also concluded that Fuselier had sustained a lumbosacral strain. However, he was of the opinion that the complaints of numbness and continued pain were possibly related to Fuselier's "marked obesity." The record reflects that Fuselier is six foot two inches tall and weighs approximately two hundred and fifty pounds. Dr. Butaud recommended as follow-up measures, a bone scan, EMG's, and nerve conduction velocities of the lower extremities. He also recommended that the plaintiff be seen by a psychiatrist and a rehabilitation specialist.

Fuselier's attorney then referred his client to Dr. Dean Moore, a Lake Charles, Louisiana, neurosurgeon, who saw the plaintiff on July 20, 1992. It was Dr. Moore's opinion that Fuselier had initially sustained a cervical and lumbar strain, but the doctor further stated that, "at the present time, I am unable to detect any residuals of such injuries and believe that his symptoms, at this point in time, have a psychological basis." He also recommended that Fuselier seek psychiatric treatment.

Fuselier had already been examined by a psychiatrist prior to Dr. Moore's recommendation. On July 7, 1992, the plaintiff was seen by Dr.

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Bluebook (online)
649 So. 2d 1197, 94 La.App. 3 Cir. 792, 1995 La. App. LEXIS 142, 1995 WL 36276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuselier-v-international-maintenance-corp-lactapp-1995.